Citation Nr: 1215714
Decision Date: 05/02/12 Archive Date: 05/10/12
DOCKET NO. 08-23 516 ) DATE
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On appeal from the
Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut
THE ISSUES
1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).
2. Entitlement to service connection for peripheral neuropathy of the lower extremities.
3. Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Helena M. Walker, Counsel
INTRODUCTION
The Veteran served on active duty from October 1966 to October 1969.
This case comes before the Board of Veterans' Appeals (Board) on appeal of a April 2007 rating decision by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut.
The Board notes that the Veteran submitted a letter to VA, dated in September 2010, to clarify which disabilities he wished to appeal. According to the Veteran, he erroneously indicated that his appeal was satisfied as to the above-captioned disabilities as noted in his June 2008 substantive appeal, when in fact those were the issues which he wished to appeal. VA sent a letter to the Veteran in March 2012 requesting that he clarify his September 2010 correspondence. As of the date of this decision, the Veteran has not responded. Thus, the Board accepts this September 2010 letter as a clarification of his substantive appeal, and finds that the claims of service connection for PTSD, tinnitus, and peripheral neuropathy are validly on appeal.
The issues of entitlement to service connection for a psychiatric disorder and peripheral neuropathy of the lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
The Veteran's tinnitus is attributable to his noise exposure during active service.
CONCLUSION OF LAW
The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
As a preliminary matter the Board notes the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate the claim herein decided. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011) or 38 C.F.R. § 3.159 (2011) in regard to that issue.
Legal Criteria
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Analysis
The Veteran essentially contends that he experienced ringing in the ears during active service and it has continued since. The Board has reviewed the evidence of record and finds, for the reasons expressed below, that the Veteran's tinnitus is etiologically related to his active service.
The Veteran's service treatment records (STRs) do not show a complaint or diagnosis of tinnitus. He reported being exposed to artillery noise while serving in the Republic of Vietnam. It is conceded that the Veteran was exposed to acoustic trauma in service. The Veteran has not sought post-service treatment for his complaints of tinnitus.
In January 2007, he was afforded a VA audiological examination, during which he reported intermittent, bilateral tinnitus. He reported his in-service noise exposure, and denied any post-service occupational noise exposure. The Veteran indicated that he works in sales. The examiner did not have the claims file present at the time of the examination and did not offer an opinion as to the etiology of the Veteran's tinnitus.
In correspondence to VA, dated in September 2010, the Veteran reported continued problems with ringing in the ears, occurring mostly as night. He stated it is very distracting and he must have a radio on while trying to sleep.
The Veteran is competent to state that he first experienced tinnitus in Vietnam and that the symptoms have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board has found the Veteran to be credible. The Board notes that the U.S. Court of Appeals for Veteran's Claims (Court) has determined that it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997); citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).
The Board acknowledges that there are no post-service treatment records addressing the Veteran's tinnitus, nor is there a clinical opinion of record linking his currently diagnosed tinnitus to his military service. The Veteran has, however, credibly testified to experiencing tinnitus following noise exposure in service, and has experienced it since.
In sum, the Board finds the Veteran's statements to be competent, credible and persuasive evidence linking his current tinnitus to service. The Board finds that the evidence in favor of the claims is at least in equipoise with that against the claim. As such, the benefit of the doubt must be resolved in favor of the Veteran.
Accordingly, entitlement to service connection for tinnitus is warranted.
ORDER
Service connection for tinnitus is granted.
REMAND
The Board is of the opinion that additional development is required before the Veteran's service connection claims for peripheral neuropathy of the lower extremities and acquired psychiatric disorder are decided.
Acquired Psychiatric Disorder
The Veteran contends that he has PTSD related to stressors alleged to have occurred during military service. In the Veteran's February 2007 stressor statement, he reported combat exposure while serving in the Republic of Vietnam, and recalled attacks by sniper fire, rockets, mortars, ambushes, and perimeter breaches. He reported 11 of his 12 months in Vietnam were performing field operations without a base camp. He also recalled a person killed in action and his body bag was not evacuated for three days. The record reflects that the Veteran served in the Republic of Vietnam, but it appears that the RO did not attempt to verify the claimed stressors.
The record also shows that the Veteran has complained of psychiatric symptoms that are triggered with certain memories. The Veteran has not sought post-service treatment for his psychiatric complaints, and has not been afforded a VA psychiatric examination.
In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U. S. Court of Appeals for Veterans Claims (Court) found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5.
Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows:
(f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.
The provisions of the above amendment apply to applications for service connection for PTSD that (1) are received by VA on or after July 12, 2010; (2) were received by VA before July 12, 2010, but have not been decided by a VA regional office as of July 12, 2010; (3) are appealed to the Board of Veterans' Appeals (Board) on or after July 12, 2010; (4) were appealed to the Board before July 12, 2010, but have not been decided by the Board as of July 12, 2010; or (5) are pending before VA on or after July 12, 2010, because the United States Court of Appeals for Veterans Claims vacated a Board decision on an application and remanded it for readjudication. Thus, the amended regulation applies in this case.
The Veteran has not been advised of the new regulation. To avoid prejudice to him, he must be advised of the new regulation, and provided an opportunity to respond, before the claim is readjudicated under that regulation.
Also, the Board has recharacterized the Veteran's claim as entitlement to service connection for a psychiatric disability, claimed as PTSD. In addition, the Board has determined that the Veteran should be afforded a VA examination to determine the nature and etiology of all currently present acquired psychiatric disorders.
Peripheral Neuropathy
The Veteran contends that he experiences bilateral lower extremity numbness and tingling. He was afforded a VA examination for his diabetes mellitus in April 2008. At that time, he reported intermittent numbness along the outer edge of the left foot upon awakening and it resolved with activity. The Veteran stated that this numbness occurred only twice weekly. The examiner diagnosed the Veteran as having intermittent focal left lateral foot neuropathy which was less likely than not related to his diabetes mellitus, and more likely related to his reported low back pain.
The Veteran was awarded service connection for diabetes mellitus in a May 2008 rating decision. In a September 2010 statement to VA, the Veteran reported experiencing near constant neuropathy. He did not describe whether this neuropathy was in the upper or lower extremities.
The Board finds that the medical evidence of record is insufficient for deciding the Veteran's claim for peripheral neuropathy of the bilateral lower extremities. The Veteran has recently been awarded service connection for his diabetes mellitus, and he is currently reporting near constant neuropathy. Although the April 2008 VA examiner found that the Veteran's left foot numbness was not related to his diabetes mellitus, the examiner did not opine as to whether the Veteran's diabetes mellitus has chronically worsened his complaints of numbness in the feet. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board finds the April 2008 VA examination to be inadequate inasmuch as the examiner failed to provide an opinion as to the theory of aggravation. Thus, the Veteran should be afforded another VA examination to determine whether the Veteran's has peripheral neuropathy of the bilateral lower extremities that were caused or chronically worsened by his service-connected diabetes mellitus.
Accordingly, the case is REMANDED for the following action:
1. The RO should undertake appropriate development, including providing the Veteran with a letter, explaining the July 2010 amendment of 38 C.F.R. § 3.304(f), and eliciting any additional stressor statements from the Veteran related to such amendment.
2. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims.
3. Then, the Veteran should be afforded an examination by a VA psychiatrist or psychologist to determine whether the Veteran has PTSD due to a stressor of being in fear of hostile action during active service or any other claimed service-related stressor, and to determine the nature and etiology of any other acquired psychiatric disorders that have been present during the pendency of this claim.
The examiner should review the claims files prior to completing the examination report. Based on the review of the claims files and examination of the Veteran, the examiner should identify (1) whether the Veteran has PTSD under the diagnostic criteria of DSM-IV; and, if so, (2) whether such PTSD is due at least in part to fear of hostile action during active service or the presumed in-service stressors.
With respect to each additional acquired psychiatric disorders present during the period of this claim, the examiner should express an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated during service, is otherwise etiologically related to service or was caused or permanently worsened by PTSD.
The psychiatrist or psychologist should set forth the complete rationale for all opinions expressed and conclusions reached.
4. The RO or the AMC should afford the Veteran an examination by a physician with appropriate expertise to determine the etiology of any peripheral neuropathy of the lower extremities present during the period of the claims.
The claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed.
Based on the review of the file and the examination of the Veteran, the examiner should state a medical opinion with respect to any peripheral neuropathy of the lower extremities present at any time during the pendency of the claims as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disability is etiologically related to active service OR was caused or chronically worsened by his service-connected diabetes mellitus.
The physician should set forth the complete rationale for all opinions expressed and conclusions reached.
5. The RO or the AMC should also undertake any other development it determines to be warranted.
6. Then, the RO or the AMC should again review the record and re-adjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and given the requisite opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate action
By this remand, the Board intimates no opinion as to any final outcome warranted.
No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
______________________________________________
WAYNE M. BRAEUER
Chief Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs